Farewell, My Lovely—Oops, Not Quite

The Supreme Court of North Carolina just issued a fascinating but divided opinion with facts straight out of a 1940’s noir thriller. How far can a would-be wife killer go before he gets into serious trouble?

The case is State v. Melton, 253 PA 17, issued 7 December 2018. It began when defendant Melton, in a bitter custody dispute with his former wife, contacted a friend who defendant believed had connections with men who could “break a few legs.”

The friend went straight to the Transylvania County Sheriff’s office and reported the conversation. In the ensuing investigation, the friend introduced defendant to an undercover deputy, then left. Defendant and the deputy/hitman engaged in a sometimes-elliptical discussion about defendant’s wishes. When asked, defendant showed the deputy $2,500 in cash (apparently a down payment), then provided the deputy with his former wife’s name, address, and cell telephone number. He also told the deputy when his wife could be found alone–after dropping their child off at school.

When the deputy asked defendant what he wanted done with his former wife’s body, defendant began to fence, avoiding specifics but eventually stating “I want to make sure my daughter is with me all the time, only me, no chance of any further court cases or anything.” He added that he did not “want any bodies moved.” The deputy asked how defendant “want[ed] it done,” but defendant responded that “I don’t care about any details.”

The deputy then asked about the additional $7,500 that defendant had agreed to pay upon completion. Defendant said he had that amount in cash with him and gave it to the deputy. Taking this final payment, the deputy told defendant that he would know when his wife was dead. After confirming to the deputy that the upcoming Thursday was an ok day to do the job, defendant left the car. Other deputies immediately swooped in and arrested him.

Defendant was indicted for attempted first-degree murder and solicitation to commit first-degree murder. The sentencing range for attempting a substantive offense is more severe than the range for soliciting the same offense. Defendant was convicted of both at trial and the court imposed hefty consecutive sentences. The Court of Appeals found no error in an unpublished opinion.

The Supreme Court allowed discretionary review and, in a split opinion, reversed defendant’s conviction for attempted first-degree murder, holding that the evidence was adequate to show solicitation only. Under North Carolina law, a criminal attempt consists of three elements: (1) intent to commit the substantive offense, (2) an overt act carried out for that purpose that goes beyond mere preparation, and (3), the overt act falls short of the completed offense. State v. Miller, 344 N.C. 658, 667, 477 S.E.2d 915, 921 (1966). The crux of the analysis in Melton was whether the evidence established the overt act required by the second element.

The Supreme Court concluded that the Court of Appeals erroneously had relied upon inapposite cases from other jurisdictions in holding that defendant had undertaken an overt act going beyond mere preparation. According to the Supreme Court, those other jurisdictions’ opinions were based on the Model Penal Code, which applied a “substantial step” test to determine whether an act is sufficient to constitute an overt act that goes beyond mere preparation. In contrast, the Melton court cited Miller for the proposition that North Carolina takes a common law approach, requiring an overt act that is part of a direct movement toward commission of the offense after preparations have been made.

In other words, said the Court, states embracing the Model Penal Code focus on what has been done, while North Carolina looks to what has yet to be done. The Court went on to add that, in North Carolina, “slight acts are insufficient” and that the overt act must be one that “in the ordinary and likely course of things would result in the commission [of the offense],” again citing Miller.

After reviewing the facts, the Supreme Court determined that defendant had arranged the means for carrying out the offense but had not begun “to ‘execut[e]’ the ‘criminal design’ that he helped concoct,” citing State v. Parker, 224 N.C. 524, 526, 31 S.E.2d 531, 532 (1944). Although both defendant and the purported hitman had agreed to a scheme, the Court pointed out that neither had begun to carry it out and that without more, none of defendant’s conduct would have led to his wife’s murder.

The dissenting judges (Justice Morgan, joined by Chief Justice Martin and Justice Newby) disagreed. The dissent reviewed the evidence of defendant’s actions and concluded it constituted “some evidence” that defendant committed an overt act which, in the normal course of events, would have resulted in the death of his wife, satisfying the Miller standards.

Although there is no question that defendant acted and what those actions were, neither the majority opinion nor the dissent tells us where the boundary lies between acts that constitute “mere preparation” and acts that constitute “movement toward commission.” The majority determined that these undisputed actions did not add up to a sufficient overt act; the dissenters disagreed.

The 4-3 split shows it’s a close call. Nevertheless, this case raises questions about the point, if any, at which a would-be defendant commits a Miller-satisfying overt act when the defendant is careful to have another person positioned as their surrogate. If someone gives a third party cash with instructions to buy a stolen car, has the provider of the cash committed an overt act under Miller? This opinion suggests that the answer is no. If the car is thereafter stolen, is the provider of the cash, having taken no additional steps in the meantime, still guilty of solicitation only? Perhaps so under the majority analysis, though if the stolen car is delivered to the moneyman, I suspect his or her status would change significantly. When Henry II said to his nobles “Will no one rid me of this turbulent priest?” was he merely soliciting or did he commit an overt act leading to Becket’s murder? Or neither?

Incidentally, the majority opinion correctly observes, but equally correctly does not rely upon, the fact that the murder was merely notional because the undercover deputy had no intention to carry out the crime. Under North Carolina law, that factor (factual impossibility of final commission of the intended offense) is not a defense. State v. Addor, 183 N.C. 687, 110 S.E. 650, 651 (1922).

We will have to see what impact this case has. I can’t help wondering, however, what the result would have been if these facts had been analyzed as a contract case instead of a criminal case.

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